Posts Tagged ‘UAGPPJA’

OCTOBER 3, 2016 VOLUME 23 NUMBER 37
Sometimes a legal proceeding in another state can help illustrate the procedures in your own state — because they are different. A guardianship case in Georgia last week is a good example.

Melvin Peters (not his real name) is twenty-one years old, and he lives with his father in Georgia. Melvin has an autism diagnosis, which he first acquired when he was three. When Melvin was twelve, his mother was given custody in a North Carolina proceeding.

Every summer Melvin traveled to his father’s (and stepmother’s) home in Georgia for a long visit. That arrangement apparently worked well, until last summer. Melvin (then twenty) refused to return to North Carolina.

At the end of last summer, Melvin’s father filed a guardianship petition in Georgia. He alleged that Melvin need a guardian appointed; though he could make some of his own decisions, his father insisted that he “needs ongoing guidance.” Melvin’s court-appointed attorney met with him, confirmed that he wanted to live with his father, and reported to the court that it would be in Melvin’s best interest to stay with his father in Georgia.

Melvin’s mother objected, and argued that the Georgia courts did not even have jurisdiction. She argued that he was really a resident of North Carolina, and any guardianship proceeding should be brought there.

The Georgia court disagreed, and proceeded to appoint Melvin’s father as his guardian. Melvin’s mother appealed, and the Georgia Court of Appeals upheld the order. Melvin will, according to the court, continue to live with his father in Georgia. Estate of Pond, September 27, 2016.

How would Melvin’s case be different in Arizona? In several ways.

First, Arizona has adopted the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (the UAGPPJA). That law mandates that a guardianship not be brought in a state where the proposed ward has lived less than six months (except in limited circumstances, none of which look like they would apply in Melvin’s situation). Well, actually, Georgia has also adopted the law — but not until this Spring. It became effective in Georgia on July 1, 2016 — well after the ruling in Melvin’s case.

The UAGPPJA is intended to reduce or eliminate guardianship filings in states where the subjects of the proceedings are just visiting. More importantly, it is intended to keep family members from taking an incapacitated person back to their home state before filing court proceedings. It has been adopted in almost every state (Florida, Texas, Kansas, Wisconsin, and Michigan are holdouts).

Another difference: in Arizona, as of August of this year, any custody order for a minor child would create a presumption about the child’s best interests after they turned eighteen. If Melvin’s father lived in Arizona, that would mean that he would have to show why the earlier custody arrangement needed to be modified, and the court would look to Melvin’s mother as the presumptive guardian.

Of course, if Melvin’s father had filed a similar proceeding in Arizona a year ago, that new law would not have been in place. Still, prior custody orders are supposed to be attached to any guardianship petition, and the guardianship court would probably have wanted to know why the same arrangement should not be continued after the incapacitated child’s majority.

That raises another likely difference: Arizona’s preference for limited guardianship. Although it is hard to be certain from the court’s description of Melvin, it seems likely that he would be viewed as pretty much able to make his own personal decisions in Arizona. If a guardian was appointed, it might well be a “limited” guardian — meaning that Melvin would be able to make his own decisions about where he lived (and who he lived with), and maybe even about his own health care decisions.

In fact, Melvin sounds like he might be a good candidate for the emerging notion of “supported decision-making“, under which he might avoid the guardianship process altogether. Arizona has no formal supported decision-making statutes — yet. That might well change as the system slowly shifts toward more autonomy and dignity for subjects of guardianship and conservatorship proceedings.

Would Melvin’s story have played out the same way if he had spent the summer with his father in Arizona? Almost certainly. But then he would have been spending his summers in Arizona, and that does seem unlikely.

JULY 25, 2016 VOLUME 23 NUMBER 28
Before any guardianship or conservatorship action can be filed in a local court, the court must have jurisdiction over the person subjected to the proceeding. For many decades that had meant (more or less) that the person must be physically present in the state, and not much more. That began to change in 2007, with the proposal, and quick adoption in most states, of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (the UAGPPJA).

Arizona, for instance, adopted the UAGPPJA in 2010. It has now been adopted by 45 states (plus the District of Columbia and Puerto Rico); the holdout states are Florida, Kansas, Michigan, Texas and Wisconsin. The law is intended to address, among other things, the problem of interstate disputes among family members — and especially to prevent warring family members from gaining tactical advantage by moving incapacitated family members involuntarily to a new state before filing a court proceeding. It received much of its impetus from the celebrated case of Lillian Glasser, whose family and friends fought over where to file her guardianship proceeding. In that regard, it is mildly ironic that one of the remaining states not adopting the UAGPPJA is Texas, where half of Ms. Glasser’s disputed guardianship case played out. Ms. Glasser herself, incidentally, died in her Florida home in 2011 — in yet another one of the few states not yet adopting the UAGPPJA.

The UAGPPJA actually addresses other, more mundane issues, as well. It establishes a mechanism for transferring guardianship proceedings to a new state when the subject of the proceedings moves. It also makes it easier for guardians (and conservators) to establish their authority in states other than the one in which the proceedings are filed. All that should make management of guardianship easier — even across state lines.

Despite its adoption in almost every state, there is precious little case law interpreting the UAGPPJA. A recent case out of Maine adds to the interpretation of the law, and helps reinforce the principles that gave rise to its adoption.

What should happen, then, when a person who needs a guardian travels across state lines, and comes to the attention of the court in a state where they do not live? If they got to the new state by the acts of a family member seeking advantage, it seems easy to answer that the family member’s misbehavior should not be rewarded. But what if there was no misbehavior — and, indeed, no family member or friend involved?

That is the dilemma that faced the Maine probate court in the case of Henry Smith (not his real name). Henry had lived for years in California. After he had a stroke in 2012, he was partially paralyzed. In an apparent attempt to get back to his original hometown in Canada, he sold his house in California and traveled across the country. He spent time in Washington State, Arizona, New Mexico and Georgia before arriving in Maine one day in 2013.

Henry checked into a hotel in Portland, Maine, and asked the staff to help him with transfers from his wheelchair to bed and to the toilet. After they worked with him that first night, the hotel staff became concerned about his ability to take care of himself, and called the police.

Portland police visited Henry, decided he was unable to make his own decisions, and took him to the psychiatric unit at a local hospital. From there, Henry was involuntarily committed for mental health treatment and then released to an assisted living facility — but not before a guardianship proceeding was initiated.

Because Henry had no family, friends or even acquaintances in Maine, the probate court appointed the public guardian to manage Henry’s placement and care. The court did give Henry some autonomy to make at least some of his personal decisions, but the public guardian was ultimately in charge of where he would live, whether he could return to either Canada or California, and what medical care he would receive.

Henry appealed his guardianship, and the Maine Supreme Court agreed with his objections. The UAGPPJA, ruled the Court, allowed an emergency guardianship order in Maine, but only for a six-month period. Since the guardianship had by that time already been in place for almost two years, the UAGPPJA’s jurisdictional limitations had already been violated. The Court did give the public guardian forty-five more days to figure out where Henry should be cared for. Guardianship of Sanders, July 7, 2016.

Does that mean that Henry must be released by Maine to continue his travels toward Canada, regardless of how ill-advised that plan might be? Not necessarily. The UAGPPJA requires that a person’s “home state” should have priority to act — and that means that California (his original home) should be given the chance to take responsibility for Henry’s decision-making. But if California declines or refuses to act, Maine courts may once again have the authority to continue the guardianship.

By our count, this is just the third appellate decision relying on the UAGPPJA (the other two were in Arkansas in 2009, and Tennessee in 2013). It seems that the mere existence of the law has significantly reduced the abuses that seemed so widespread when we first wrote about Lillian Glasser’s case back in 2007.

JULY 12, 2010 VOLUME 17, NUMBER 22
Among the less-controversial steps taken by the Arizona Legislature in 2010 was the adoption of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, which is usually referred to by its unpronounceable acronym UAGPPJA. The new law, which becomes effective on July 29, should make it easier for families to handle interstate guardianship and conservatorship issues. At the same time it should make it harder for warring families to move an ailing or demented family member across state lines for personal advantage.

Problems with interstate application of guardianship and conservatorship laws have been all too common. Imagine a typical scenario: father and stepmother, married for 25 years, live in Pennsylvania. Three children from father’s first marriage live in Florida, Arizona and Illinois. After stepmother checks father into a Pennsylvania adult care home, the children meet in Pennsylvania and decide they are better equipped to make decisions about their father’s care. Without telling their stepmother of their intentions they check father out of his adult care home, put him on an airplane, fly to Tucson and check him in to a nursing home here. Then they file a guardianship and conservatorship action in Arizona, giving notice to his wife in Pennsylvania.

Under existing law such a proceeding would be permissible, and could result in the Arizona courts making decisions about not only the Pennsylvania man’s living arrangements and medical care, but also over his (and his wife’s) Pennsylvania property. The cost and trouble of traveling to Arizona, hiring a local attorney and objecting to the Arizona court proceedings might well deter his wife from protecting herself or asserting her views on the proper care for her husband.

After the UAGPPJA goes into effect, however, such interstate moves to secure legal advantage should become ineffective. The Arizona courts will be instructed to defer to the courts of the home state of any proposed ward.

There are other frequent — and much more benign — interstate problems in guardianship and conservatorship proceedings that are addressed by the UAGPPJA, too. One arises when the subject of an Arizona guardianship legitimately moves out of state. Imagine, for example, that a working couple have become guardian for their 22-year-old son who is developmentally disabled. Now they want to move to another state, and they will take their son with them. Will their Arizona guardianship be valid in the new state? Will they have to initiate an entirely new proceeding in the new state? If they do not, will they have to report to the Arizona courts for the rest of their son’s life — even though Arizona no longer has any direct involvement in his life?

If the new state has also adopted the UAGPPJA (and so far 19 other states and the District of Columbia have) the process of transferring a guardianship or conservatorship is vastly simplified. A filing needs to be made with the Arizona court, then with the courts of the new state. Once both courts have agreed that the guardianship can be transferred, the Arizona proceeding is terminated and the new state takes over. The process is much simpler than a second proceeding in the new state, and it ensures approval from the Arizona courts before any action is taken. The same process can work in reverse for people moving into Arizona.

One other interstate problem arises when, for example, an Arizona conservatorship involves property in another state. Under the existing patchwork of laws, each state is different — and many of them require an entirely new conservatorship (a “protective proceeding” in the language of the interstate jurisdiction law) with court-appointed attorneys, bond premiums and separate accountings filed in the state with the property. The new law makes the process much simpler: once the Arizona conservator has filed appropriate documents with the courts of the other state, he or she can proceed as if appointed in that state. No separate court proceedings required, no additional legal fees incurred, and no potential conflicts between two courts overseeing the same conservatorship.